Pace International Law Review
Volume 15
Issue 1 Spring 2003
Article 4
April 2003
A Call to Arms: The Posse Comitatus Act and the
Use of the Military in the Struggle against
International Terrorism
Tom A. Gizzo
Tama S. Monoson
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Tom A. Gizzo and Tama S. Monoson, A Call to Arms: The Posse Comitatus Act and the Use of the
Military in the Struggle against International Terrorism, 15 Pace Int'l L. Rev. 149 (2003)
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A CALL TO ARMS: THE POSSE
COMITATUS ACT AND THE USE OF THE
MILITARY IN THE STRUGGLE AGAINST
INTERNATIONAL TERRORISM
Tom A. Gizzo, Esq.* and Tama S. Monoson*
I. Introduction ....................................... 150
II. The Posse Comitatus Act .......................... 152
A. Background and Related History .............. 152
B. To Which Branches of the Military Does the
Act Apply? ..................................... 155
C. Jurisdictional Challenges ...................... 158
III. Territorialism - The Commingling of Police and
Military Superstructures .......................... 160
IV. The Posse Comitatus Act: To Bar or Not to Bar That is the Issue .................................. 164
A. Contemporary Interpretation and Application
to M ilitary Forces ............................. 165
B. United States v. Yunis: The Turning Point ....
170
C. International Counterterrorism Legislation:
The United States and the International
Community Respond to Terrorist Threat: ......
1. European Convention on the Suppression
of Terrorism ...............................
171
171
* Tom A. Gizzo is a practicing attorney in West Harrison, New York and a
Program Specialist with the Department of Public Safety in Westchester County.
He holds a B.A. from Manhattanville College, a M.S. in Criminal Justice from
Long Island University and a J.D. from Pace University School of Law. Mr. Gizzo
would like to take this opportunity to thank his wife, Lucy Anne, for her never
ending encouragement and support, the editors and staff of the PACE INTERNATIONAL LAW REVIEW for their tireless efforts in editing this comment, and Barbara
Clay, Esq., and Concetta Chiarolanza, J.D., for providing exceptional assistance in
research.
* Tama S. Monoson is a third year evening student at Pace University Law
School with a B.A. from Hamilton College and a M.S.W. from Columbia School of
Social Work.
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[Vol. 15:149
2. The United Nations General Assembly
Resolution on Measures to Prevent
International Terrorism .................... 172
3. United States Counterterrorism
Legislation ................................. 172
V. Analysis: The Posse Comitatus Act and the U.S.
Military - Friends or Foes? ..... ................... 178
V I. Conclusion ......................................... 179
I.
INTRODUCTION
The tragic events of September 11, 2001, marked the beginning of a new age in the war against international terrorism in
the United States. As President George W. Bush stated in his
address to the nation:
[W]e are a country awakened to danger and called to defend freedom. Our grief has turned to anger and anger to resolution.
Whether we bring our enemies to justice or bring justice to our
enemies, justice will be done .... We will not tire; we will not
falter; we will not fail.'
International terrorism "covers a number of different issues in
the contemporary world, from state-sponsored terrorism
against foreign countries to co-operation between various terrorist groups. ' 2 Terrorists have indicated through recent attacks 3 that there are few actions that they will not take in an
attempt to spread their angry message. The chances of further
attack on the United States and the use of weapons of mass destruction are great. 4 Currently, terrorism is defined as a law
enforcement issue rather than a national security issue, which
limits the ability of the Department of Defense to counter terrorism when actions occur on American soil.5
1 Address to a Joint Session of Congress on the United States Response to
the Terrorist Attacks of September 11, 37
WEEKLY COMP. PRES. DOC.
1347, 1347-50
(Sept. 20, 2001).
2 WALTER LAQUEUR, THE AGE OF TERRORISM 266
3 In the past ten years, terrorists have attacked
(1987).
Tokyo's subway system by
releasing sarin gas, sent anthrax through the United States mail, and buried radiological weapons in a Moscow park. See Chris Quillen, Posse Comitatus and Nuclear Terrorism, 32 PARAMETERS 60 (2002), http://carlisle-www.army.mil/usawc/
parameters/02spring/quillen.htm.
4 See id.
5 See id.
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In order to defeat terrorism or minimize its impact, one
must first understand that - terrorism is, in reality, "propaganda by deed." 6 The success of a terrorist campaign depends
upon the degree of publicity each event receives. 7 Therefore,
success for the terrorist is measured not only by the actual accomplishment of the mission but also by creating the public perception that ordinary citizens are vulnerable to attack while
terrorists themselves remain shadows - difficult to find and
harder still to prosecute.
This article will address whether current federal and state
law enforcement measures are adequate to safeguard the citizens and the national interests of the United States from terrorist attack or whether a more comprehensive antiterrorism plan
requiring military intervention is needed. This article will explain what the United States must do to effectively respond to
recent acts of international terrorism committed on domestic
soil. Specifically, it will focus on the historical significance and
development of the Posse Comitatus Act (Act or PCA) 8 and examine the Act's potential application in matters relating to the
deployment of military personnel to assist federal or state law
enforcement agencies responding to terrorist incidents. The issues raised include whether current federal and state law enforcement measures are adequate to safeguard the citizens of
the United States and national interests from terrorist attack
or if a more comprehensive antiterrorism plan requiring military intervention is needed.
Part II provides the historical context within which the Act
was created. In addition, Part II examines how federal courts
have interpreted the Act's express prohibition against using the
Army or the Air Force as a posse comitatus and whether such
prohibition has been applied to all branches of the military
appropriately.
Part III looks at territorialism and how the commingling of
law enforcement and military personnel creates the potential
for statutory, logistical and philosophical differences regarding
how best to approach international terrorism issues. As part of
this discussion, Part III contrasts the military's use of force doc6 LAQUEUR, supra note 2, at 121.
7 See id.
8 See 18 U.S.C.S. § 1385 (Law. Co-op. 1996).
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trine with the more traditional law enforcement approach,
which relies on international conventions and economic sanctions to achieve results. Also, Part III examines a concern
shared by the state and federal judiciaries that an overzealous
military could lead to authoritarian rule in violation of the letter and the spirit of the Act.
Part IV discusses the legal standards applied by the federal
courts to determine whether the Act bars all military action
and/or intervention. Part IV, subsection A, surveys contemporary interpretations of the Act and its application to military
forces. Meanwhile, Part IV, subsection B, examines United
States v. Yunis, 9 a case that presents the most definitive judicial analysis to date of military intervention in support of federal law enforcement agents, and Part IV, subsection C,
examines how contemporary federal counterterrorism legislation defines the role of a proactive military in matters of international terrorism.
Part V analyzes whether, consistently with counterterrorism legislation, United States military forces may become more
deeply involved in matters concerning acts of international terrorism. Lastly, Part VI suggests that the use of military personnel and equipment to assist domestic law enforcement
agencies does not violate the Act and that the military's support
of law enforcement agencies in matters involving international
terrorism violates neither the letter nor the spirit of contemporary counterterrorism legislation.
II.
THE POSSE COMITATUS ACT
A. Background and Related History
The post-Civil War era spawned much legislation aimed at
curbing hostilities and soothing a wounded nation. The Posse
Comitatus Act was first adopted in 187810 as a rider to an Army
appropriations bill.11 The PCA criminalized and prohibited the
9 681 F. Supp. 891 (D.D.C. 1988).
10 See Army Appropriations Act, ch. 263, § 15, 20 Stat. 145, 152 (1878) (codi-
fied as, and amended at 18 U.S.C. § 1385 (1994)).
11 See Bonnie Baker, The Origins of the Posse Comitatus, AIR AND SPACE
POWER J. (Nov. 1, 1999), at http://www.airpower.maxwell.af.mil/airchronicles/cc/
bakerl.html. The original act stated "[firom and after the passage of this act it
shall not be lawful to employ any part of the Army of the United States as a posse
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use of the Army as a posse comitatus; 12 however, the Act is
more of a policy statement than a criminal law.13 The Act arose
due to two factors: the end of the Civil War Reconstruction period and the conditions of the western frontier of the United
States. 14 More specifically, the close presidential election of
1876 was the direct cause of the development of the Act.
Prior to the enactment of the Posse Comitatus Act, federal
troops were stationed at voting booths to prevent "inebriates,"
women, blacks, and others who were not authorized to vote
from voting. 15 After the Civil War, federal troops were used to
ensure "universal manhood suffrage" and prevent former Confederate officers from voting. 1 6 The involvement of federal
troops in everyday functions became unnecessary when the Reconstruction period ended. 17
During the Reconstruction period, America was also expanding into the western frontier, which presented its own
problems regarding law enforcement. Much of the frontier had
not been admitted to statehood, and therefore fort commanders
assumed the responsibility of exercising civilian law enforcement.18 The fort commanders exercised their responsibilities in
an arbitrary manner seeking those they believed were criminals
comitatus, or otherwise, for the purpose of executing the laws, except in such cases
and under such circumstances as such employment said force may be expressly
authorized by the Constitution or by an act of Congress .... ." Army Appropriations Act, ch. 263, § 15, 20 Stat. 145, 152 (1878). See also People v. Burden, 288
N.W.2d 392, 392-94 (Mich. Ct. App. 1979) (providing a detailed explanation and
discussion of the Congressional reasoning for the enactment of the Posse Comitatus Act).
12 A "posse comitatus" is defined as "[t]he power or force of the county. The
entire population of a county above the age of fifteen, which a sheriff may summon
to his assistance in certain cases, as to aid him in keeping the peace, in pursuing
and arresting felons, etc." BLACK'S LAw DICTIONARY 806 (6th ed. 1991). The second part of the definition is part of the English common law doctrine. See Jeffrey
Addicott, Draftingthe Military:The Posse Comitatus Act and the Hunt for the D.C.
Sniper, JURIST (Oct. 17, 2002), at http://jurist.law.pitt.edu/forum/forumnew62.php.
13 See Matthew Carlton Hammond, The Posse Comitatus Act: A Principle in
Need of Renewal, 75 WASH. U. L. Q. 953, 955 (1997).
14 See Baker, supra note 11.
15 See id.
16 See id. All former Confederate officers were unable to vote or hold state
office after the Civil War. See id.
17 See id.
18 See id.
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or Indians and were a threat to settlers. 19 As a result of the
unstructured law enforcement, violations of the United States
Constitution occurred and conditions arose that were "untenable to elected civil officials." 20 The concern was that federal
troops would be used to control the Western frontier rather
than allowing the area to develop its own law enforcement
measures.
The original Posse Comitatus Act was vetoed by President
Rutherford B. Hayes when it was sent to him as the rider to the
Army Appropriations Act of 1880.21 President Hayes explained
that he vetoed the entire bill because the rider "involve [d] questions of the gravest character." 22 Additionally, President Hayes
vetoed the bill due to the changes it made as to how elections
were controlled and the role of the military in the enforcement
of the laws, which had no relation to the financing of the
Army,2 3 and his belief that the United States has the right "to
use force . . . to protect these elections from violence and
fraud."24 The Act was amended in 1981 under Public Law 97-86
and reads as follows:
[wihoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any
part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or
25
imprisoned not more than two years, or both.
The language of the Act was intended to reiterate the Founding
Fathers' dislike of federal troops overbearing presence, including investigating Americans at home. 26 The Act's purpose, in
19 See id.
20 Baker, supra note 11.
21 See id.
22 Id. (quoting President Hayes veto statement of the Army Appropriation Act
for 1880, April 29, 1879).
23 See C.T. Rossi, The Posse Comitatus Act: Can We MaintainAmerican Freedom Without it?, ENTER STAGE RIGHT (July 29, 2002), at http://www.enterstage
right.com/archive/articles/0802/0802posse.htm (where the author suggests that
President Hayes vetoed the bill because he wanted the "power to intimidate" with
federal troops as his predecessors had used).
24 Id.
25 18 U.S.C.S. § 1385 (Law. Co-op. 1996).
26 See Kelley Beaucar Vlahos, Lawmakers Debate Sending in the Troops - at
Home, FoxNEws.coM
(Nov. 9,
2001),
http://www.sweetliberty.org/issues/war/
safety/mil.htm.
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short, was to deter the use of military personnel to augment or
replace civil law enforcement authorities in circumstances involving domestic disturbances or uprisings.2 7
B.
To Which Branches of the Military Does the Act Apply?
The Posse Comitatus Act is currently used to prevent generalized military involvement in domestic law enforcement, but
the prohibitions have eroded due to challenges, such as excessive drug trafficking, to modern law enforcement. 28 The circumstances that precipitated the adoption of the Act no longer
exist, and the federal courts have not been inclined to place
greater limitations on the military than are exacted by the Act.
The Act originally only forbade use of the Army in civilian law
enforcement with the prohibitions against Air Force involvement arising from Congress' codification of Title 10 of the
United States Code in 1956.29 Today, when federal courts are
asked to decide whether the military has exercised authority in
matters traditionally reserved for domestic law enforcement
agencies, they must first decide which branch of the military
was involved and whether or not the Act applies at all. Thus,
the relevant inquiry when determining whether to apply the
Act in such matters is by necessity fact specific, and requires
examination on a case-by-case basis. 30
27 "ITIhe feared use which is prohibited by the posse comitatus statute is that
which is regulatory, proscriptive or compulsory in nature, and causes the citizens
to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority." United States v. McArthur, 419 F. Supp. 186,
194 (D.N.D. 1975), affd sub nom. See also United States v. Casper, 541 F.2d 1275
(8th Cir. 1976), cert. denied, 430 U.S. 970 (1977). The purpose of the Act was "to
put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished." Chandler v. United
States, 171 F.2d 921, 936 (1st Cir. 1948). Elections were held through the use of
federal troops ostensibly called upon to preserve peace and maintain order. See
United States v. Red Feather, 392 F. Supp. 916, 922 (D.S.D. 1975). When state
elections were disputed, it was alleged that federal troops were shown to have supported Reconstruction candidates. See id.
28 See Baker, supra note 11.
29 The Act now applies to the Army and the Air Force. See Hammond, supra
note 13, at 963 n.66.
30 See generally United States v. Chon, 210 F.3d 990 (9th Cir. 2000) (holding
that although the Act, prohibiting Army and Air Force military personnel from
participating in civilian law enforcement activities, does not directly reference the
Navy or Marine Corps, this omission does not constitute Congressional approval
for Navy involvement in enforcing civilian laws); Gilbert v. United States, 165 F.3d
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Federal courts have steadfastly recognized the principle
that the amended Act of 1956, "[b]y its express terms... prohibits only the use of the Army and the Air Force in civilian law
enforcement." 31 The Act makes no mention of either the Navy
or other military subdivisions, including the Marine Corps,
Coast Guard, and the National Guard. At the time of the passage of the original Act, the Army was the only type of military
used in the United States. The Air Force, Marines, Coast
Guard and National Guard all existed at the time of the amendment of the Act in 1965, but specific prohibitions of their use in
domestic law enforcement were not included. As a matter of
policy, however, the Navy, in 1988 adopted the restrictions of
the PCA, but authorized exceptions to this policy when specifically approved by the proper authority. 32 The Coast Guard
functions as a branch of the armed forces, but during peacetime, under Title 14 of the United States Code, it is under the
authority of the Department of Transportation, 33 making it
non-military, and therefore the Act does not apply to it. 3 4 Simi-
larly, the National Guard is not limited by the PCA during its
normal function of state service since the Act only applies to
forces in federal service. 35 Additionally, the Army has the ability to assist civilian law enforcement during times of great national disaster under the Robert T. Stafford Disaster Relief Act
470 (6th Cir. 1999) (finding that members of the Kentucky National Guard who
were part of a marijuana strike force team did not violate the Act when they were
in "state" rather than "federal" service at the time of defendant's arrest and when
they were acting in response to directives issued by the governor); United States v.
Hutchings, 127 F.3d 1255 (10th Cir. 1997) (explaining that a Utah National
Guardsman who assisted federal officials in the search and arrest of defendant
from a marijuana growing operation was not then any part of the Army or Air
Force, and therefore his participation did not violate the Act when there was no
showing that he had been ordered into federal service); United States v. Allred,
867 F.2d 856 (5th Cir. 1989) (holding that a member of the Judge Advocate Corps
acting as a special assistant prosecutor in the investigation, grand jury presentation, and prosecution of defendant did not violate the Act).
31 United States v. Roberts, 779 F.2d 565, 567 (9th Cir. 1986). See generally
United States v. Acosta-Cartagena, 128 F. Supp. 2d 69 (D.P.R. 2000) (holding that
the statute generally bars the use of the Army and Air Force but not the Navy as
posse comitatus and prohibits the Army or Air Force from enforcing civilian law).
32 See Hammond, supra note 13, at 963 n.68.
33 See 14 U.S.C. § 1 (2001).
34 See Hammond, supra note 13, at 963 n.68.
35 See id.
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of 1984(Stafford Act), 36 which was amended in 1988. The
Army's 3 7 assistance is requested by the governor of a given
state from the President of the United States, when a state of
emergency occurs, which results from a national disaster. The
result of this request is that active duty soldiers are deployed
under the supervision of the Federal Emergency Management
Agency (FEMA) 38 . The courts have affirmed the above distinc39
tions by narrowly defining "army" as used in the Act.
Another significant area of exception to the Act focuses on
the President's power to delegate the military's services. The
Act expressly exempts activities authorized by the Constitution
as well as specific activities enumerated in the actual Act itself.
The President is provided under 10 U.S.C.S. 332, the ability to
call "the militia of any state and use . . . the armed forces to
suppress ... rebellion" 40 during times in which he determines
"unlawful obstructions, combinations, or assemblages, or rebellion against the United States"4 1 result in an inability to enforce
national or state laws using ordinary methods. This exception
to the Act provides the President with broad discretion in supplying states with active duty soldiers to assist. 42 The courts
have found that the President has a plenary authority to use
federal troops under this exception and these decisions are not
subject to judicial review.4 3 This exception is probably the most
36 42 U.S.C.S. § 5121 (Law. Co-op. 1988). See also Thomas R. Lujan, Legal
Aspects of Domestic Employment of the Army, 27 PARAMETERS 82 (1997), available
at http://carlisle-www.army.mil/usawc/Parameters/97autumn/lujan.htm (stating
the Stafford Act authorizes the President to create a program to provide assistance
during times of national disaster).
37 The Department of Defense has delegated the Army as the executive agent
for disaster relief. See Lujan, supra note 36, at n.1.
38 See id. This exception is invoked regularly, such as during the September
11, 2001 World Trade Center attack and Hurricane Andrew in 1992.
39 See United States v. Jaramillo, 380 F. Supp. 1375, 1382 (D. Neb. 1974)
(where the court excluded the special operations group of the United States Marshall Service from the Act's definition of an army).
40 10 U.S.C.S. § 332 (Law. Co-op. 1998).
41 Id.
42 See Lujan, supra note 36. In 1992, after the Rodney King trial verdict was
publicized, violent riots erupted in Los Angeles, which the Los Angeles Police Department and National Guard could not contain. See id. Therefore, at the California governor's request the President provided armed forces, army soldiers, and
marines to enforce the law and restore order. See id.
43 See Monarch Ins. Co. v. District of Columbia, 353 F. Supp 1249 (D.D.C.
1973), affd 497 F.2d 683 (D.C. Cir. 1974), cert. denied 419 U.S. 1021 (1974).
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important one when analyzing whether the United States can
respond to domestic terrorist attacks using the federal armed
forces.
C. JurisdictionalChallenges
The Act has been in effect for over 120 years and has not
resulted in any criminal prosecutions. This has limited the
courts' ability to directly interpret the Act. 44 Federal courts
have steadfastly maintained that challenges to the Act based on
inappropriate personal jurisdiction will not prevail. In United
States v. Cotten,4 5 the Ninth Circuit rejected a challenge to the
Act based upon an alleged lack of personal jurisdiction, as applied to persons abducted overseas. In Cotten, two American
servicemen were forcibly returned to the United States from Vietnam using military personnel and equipment. The defendants claimed that such actions violated the Act and their due
process rights under the Fifth and Fourteenth Amendments of
the United States Constitution. 46 Despite acknowledging that
the defendants were poorly treated when they were physically
subdued, struck in the head, handcuffed, and placed in leg irons
and cargo chains, the court nevertheless held that there was no
violation of the Act and denied the defendant's jurisdictional
challenge. 47 Additionally, in Chandler v. United States,48 the
First Circuit held that the Act was not violated when military
forces arrested a defendant overseas in a territory where no
49
civil regime existed.
44 See Hammond, supra note 13, at 961. See also People v. Burden, 288
N.W.2d 392, 395 (Mich. App. 1979) (where the court stated that an investigation
showed no cases in which violators of the Posse Comitatus Act were prosecuted).
45 471 F.2d 744 (9th Cir. 1973).
46 See Cotton, 471 F.2d at 746.
47 See Cotton, at 746 n.4.
48 171 F.2d 921 (1st Cir. 1948).
49 See Chandler, 171 F.2d at 936. See also Gillars v. United States, 182 F.2d
962, 972-73 (D.C. Cir. 1950) (where the court stated that the trial court had personal jurisdiction to try the defendant for treason even if she was brought from
Japan to the United States illegally; however, the Posse Comitatus Act was not
applicable since its purpose was to end the use of federal troops in state elections
in a posse comitatus and the American troops in Germany after World War II were
not considered a posse comitatus as they were the law enforcement in Germany at
the time of the defendant's arrest).
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However, perhaps the most famous challenge to the jurisdictional basis of the Act concerns the circumstances surrounding the extradition of the infamous "Tokyo Rose," who was
taken from Japan to San Francisco on charges of treason.50 The
defendant's argument that the federal court lacked jurisdiction
in a curt referand that the Act had been violated was rejected
51
ence to the holdings in Chandler and Gillars.
The federal courts have also been resistant to applying the
exclusionary rule in matters alleging PCA violations. 52 The federal courts' main determination when addressing the issue of
whether the Act is applicable to a situation focuses on the behavior of the military while supporting civilian law enforcement. Specifically, the courts have applied a test, which was
50 See D'Aquino v. United States, 192 F.2d 338, 351 (9th Cir. 1951). Iva Ikuko
Toguri D'Aquino was a radio speaker, announcer, scriptwriter, and broadcaster for
the Japanese government and the Broadcasting Corporation of Japan who was
charged with treason for giving aid and comfort to the enemies of the United
States through her work between November 1, 1943, and August 13, 1945. See id.
at 348. She was specifically convicted of speaking "into the microphone" in October
1944 regarding the loss of ships with the intent to destroy the confidence of
soldiers in the armed forces of the United States. See id. D'Aquino appealed her
conviction on many errors by the trial court, including a lack of jurisdiction because she was transported from Japan to San Francisco by military authorities,
which violated the Posse Comitatus Act. See id. The court, nevertheless, rejected
this argument, as discussed in the accompanying text. See id. at 351.
51 See D'Aquino, 192 F.2d at 351.
52 See Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir. 1990). See also Hall v.
State of Indiana, 557 N.E.2d 3, 4-5 (Ind. App. 1 Dist. 1990) (where the court stated
that the acts of two air force personnel in an undercover drug investigation did not
rise to the Act's standard of "regulatory, proscriptive or compulsory" and therefore
their testimony would not be suppressed under the exclusionary rule); People v.
Blend, 175 Cal. Rptr. 263, 270 (Ct. App. 1981) (where the court stated that the
involvement of a Navy WAVE in an undercover narcotics bust was not a violation of
the Act, and therefore her testimony was properly admitted as evidence of the narcotic sale. The court declined to reach the issue of whether the imposition of an
exclusionary rule is ever an appropriate remedy in a case regarding the violation of
the Act.); Hammond, supra note 13, at 962. See generally United States v. Brown,
9 M.J. 666 (N.C.M.R. 1980) (where the Act was found not to proscribe joint investigatory techniques, and where the primary military purpose was motivation behind
the use of armed forces personnel, no violation occurs from incidental enforcement
of civilian law); Taylor v. State, 645 P.2d 522 (Okla. Crim. App. 1982) (where the
court applied the exclusionary rule to a violation of the Act because a military
police officer was found to be actively involved in a search and arrest. However,
the court found that the violation of the Act was not the reason to invoke the exclusionary rule.).
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laid out in State v. Nelson.53 The purpose of this test is to determine whether military personnel are acting in a "passive" or
"active" role. 5 4 Involvement of military personnel in actions
such as arrests and searches and seizures are considered "active" and the courts have found these actions to be in violation
of the Act. 55 In comparison, the courts have determined that
"passive" support includes actions such as providing equipment,
planning, logistics support, and training.56 The courts have
based these decisions on the fact that the imparting of superior
knowledge by the military does not violate the Act because of
the limitations on civilian law enforcement and the unique
equipment and technological advances of the military. The line
between the territory of civilian law enforcement and the military seems clearly based on the Nelson court's test. However,
often a determination is being made as to whether a commingling of forces should occur.
III.
TERRITORIALISM - THE COMMINGLING OF POLICE AND
MILITARY SUPERSTRUCTURES
Circumstances that demand action in response to terrorist
attacks invoke a desire to use all available force, without often
taking into consideration the more practical aspects of balancing philosophical and logistical boundaries, with the pride that
often comes with defending one's own turf. The use of military
personnel and equipment is one means available in responding
to terrorist incidents, while another couples standard police response practices together with political and economic sanctions
against the terrorist's host country. 57 It has been proposed that
the federal government has two means of responding to terrorism in the United States and abroad. 58 Specifically, a nation
may respond to terrorist attacks as a law enforcement problem
53 260 S.E.2d 629, 639 (N.C. 1979), cert. denied sub nom. See generally Jolly
v. North Carolina, 446 U.S. 929 (1980).
54 See Nelson, 260 S.E.2d at 639. See generally Craig T. Treiblock, The Myth
of the Posse Comitatus, J. HOMELAND SECURITY (Oct. 2000), at http://www.homelanddefense.orgjournal/Articles/Trebilcock.htm.
55 See Treiblock, supra note 54.
56 See id.
57 See NORMAN ANTOKOL & MAYER NUDELL, No ONE A NEUTRAL: POLITICAL
HOSTAGE-TAKING IN THE MODERN WORLD 174 (1990).
58 See RICHARD J. ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST
STATE-SPONSORED INTERNATIONAL TERRORISM 57 (1989).
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or it may respond in a more traditional military fashion by invoking "the law of armed conflict." 59 The military is prohibited
from executing the law of the United States under the Act.
Generally, civilian law enforcement functions include execution
of national, state, and local laws on a daily basis. Specifically,
these functions include arrest and detention of suspected
criminals, search and seizure, restriction of civilian mobility in
designated areas, evidence gathering for adjudication, and em60
ployment of undercover agents in civilian drug enforcement.
Force is the ability to influence, affect, or control, 6 1 and generally a demonstration of military strength and resolve often involves the use of force. 6 2 Democratic governments have
consistently viewed the overt use of military force "as the option
of last resort."63 An effective use of force requires development
and implementation of specialized units that are capable of neu64
tralizing terrorist threats when they occur.
The inherent problem with an increased or expanded military presence in areas traditionally reserved for law enforcement agencies is that military intervention necessarily requires
a dramatic shift in the relationship between federal and state
law enforcement. This change necessitates a comprehensive
understanding of the political sensibilities and realities of mitigating "turf wars" between traditional law enforcement agencies on the one hand, and the military superstructure on the
other. This topic was of recent discussion when Defense Secretary Donald Rumsfeld permitted the use of military surveillance planes in tracking the "D.C. sniper" who was eluding local
law enforcement. 6 5 When confronted with concerns regarding
military involvement in the sniper search, the Pentagon responded that the military pilots would be flying with federal
agents and would be merely operating the planes with no involvement in analysis or follow up, which is allowed under the
59 Id.
60
61
62
63
See Treiblock, supra note 54.
See ANTOKOL & NUDELL, supra note 57, at 174.
See id.
Id.
64 See id.
65 See Addicott, supra note 12 (where the author argues that the Posse Comitatus Act was not violated by Defense Secretary Rumsfeld's agreement to provide
military surveillance planes to track the DC sniper, since the Act "does not prevent
the President from using the military in cases of civil disorders or emergencies.").
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PCA.66 The intermingling of law enforcement and military superstructures evokes a fear of loss of power and role by both
military and law enforcement personnel, which was a basis for
the creation of the Act.
Courts have provided several factors that weigh against using military forces for law enforcement purposes. First, it is understood that the deployment of military personnel in areas
traditionally reserved for law enforcement agents would expose
civilian governments to autonomous military rule and the possible abeyance of constitutional liberties. 67 Second, the use of the
military to enforce civil laws requires the entrustment of the
protection of Fourth and Fifth Amendment rights to persons not
trained to uphold these rights. 68 In addition, it is conceivable
that through military deployment we might limit the exercise of
fundamental rights and in the process create an atmosphere
dominated by the same fear and hostility that exists in countries occupied by enemy forces. 69 Finally, it is also possible that
the military's hierarchy could feel uneasy and uncertain in performing a role that is essentially a law enforcement function.7 0
In the past, the military's reaction to terrorist actions was more
closely related to the response of a peacetime crisis and not that
of an armed conflict 71 since the United States was not deemed
to be "at war" in a traditional sense.
Since September 11, 2001, however, that view has changed
and there is overwhelming support for the current notion that
terrorism and terrorist acts are essentially a new form of warfare. This is evidenced by the creation of a Counterterrorism
Bureau and the Intelligence Division in the New York City Police Department. 72 In creating this department, the New York
City Police Department has effectively avoided bringing the
military into the local law enforcement but has advanced its
66 See generally Steve Vogel, Military Aircraft with Detection Gear to Augment
Police, WASH. POST, Oct. 16, 2002.
67 See Bissonette v. Haig, 776 F.2d 1384, 1387 (8th Cir. 1985).
68 See id.
69 See id.
70 See ERICKSON, supra note 58, at 57.
71 See id. at 59.
72 See William K. Rashbaum, Terror Makes All the World Beat for New York
Police, N.Y. TIMES, July 15, 2002, http://www.nytimes.com/2002/07/15/nyregion/
15TERR.html.
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A CALL TO ARMS
2003]
skills through training of senior police commanders by the Naval War College in Rhode Island.7 3 The relationship that the
New York City Police Department has developed with the military seems to be the ideal situation for civilian law enforcement
and the military. Services of both departments are employed
appropriately and assistance, information, and possibly equipment are shared without a loss of integrity of either the civilian
law enforcement or the military. The attack on New York on
September 11, 2001, has a clear long term affect on the struggle
regarding whether the military should be involved in domestic
issues and when law enforcement should be relied upon by civilian law enforcement agencies.
In order to determine what is indeed the best way to approach the international terrorist threat, a government must
look to a variety of factors, including "foreign policy and other
political considerations, the nature of the threat, and the advantages and disadvantages of each approach." 74 In the United
States, the Justice Department, through the auspices of the
Federal Bureau of Investigation (FBI), is responsible for representing law enforcement interests in circumstances surrounding domestic terrorist incidents. 75 The dramatic increase in
foreign terrorism in recent years has caused our domestic federal and state agencies to review, modify, and upgrade their existing anti-terrorist capabilities. 7 6 Police forces have found it
increasingly difficult to address terrorist activities using traditional law enforcement security measures. 77 Unlike many democratic countries, the United States does not suffer from a lack
of civilian law enforcement personnel available or capable of
dealing with an adversary, but there is a need to ensure that
these forces are aware of the most effective and technologically
Specifically, the
advanced methods of law enforcement. 78
equipment necessary to track international terrorists, elucidate
their plans, and ensure the safety of Americans has been compromised by outdated equipment, limited training, and the mo73 See generally id.
74 ERICKSON, supra note 58 at 58.
75 See ROBERT H. KUPPERMAN & DARRELL
M.
TRENT, TERRORISM: THREAT, RE-
ALTY, RESPONSE 167 (1979).
76
See
JOHN
B.
WOLF, ANTITERRORIST INITIATIVES
58 (1989).
77 See LAQUEUR, supra note 2, at 133.
78 See id.
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bility of the terrorists. The assistance and guidance of the
military through training, advice, and borrowed equipment is
necessary to adequately respond to the many instances addressed by civilian law enforcement and to ensure readiness for
future domestic terrorist attacks. Balancing the need for safety
and the desire to maintain a non-militarized country has become more important to prevent territorialism between the military and the local law enforcement, while also adequately
protecting the United States' interest domestically and abroad.
IV.
THE
Posse Comitatus Act: To Bar or Not to Bar That is the Issue
The federal courts have attempted to strike a balance between statutory limitations of post-Civil War legislation, and
the practical realities of interpreting those limitations in a contemporary society. The decisions indicate a clear willingness to
grant military use exemptions under circumstances not ex-
pressly prohibited by the Act. 7 9 It has been reasoned that the
pooling of such critical resources would serve the common welfare by promoting cooperation and understanding between various law enforcement and military branches.8 0 This cooperation
would be beneficial in protecting the United States from further
terrorist attack.81 The symbiotic relationship of the military
and law enforcement will provide an expanded base for the ex79 See generally United States v. Yunis, 681 F. Supp. 891 (D.D.C. 1988); State
v. Marrero, 818 So.2d 211 (La. App. 4 Cir. 2002) (holding that the Act was not
violated in a circumstance in which the Navy personnel provided Navy uniforms to
civilian vice squad detectives who were involved in an undercover drug bust in an
area frequented by Navy personnel); State v. Hayes, 404 S.E.2d 12 (N.C. App.
1991) (finding that the military personnel's involvement in the investigation of a
soldier dealing drugs did not violate the Act since civilian law enforcement was in
charge of the investigation and the citizens were not subject to military power);
Burkhart v. State, 727 P.2d 971 (Okla. Crim. App. 1986) (finding that an Army
Criminal Investigation Department investigator's role was "passive", in that he
only purchased the drugs from the defendant and was not involved in the arrest or
asserting military authority over the defendant).
See generally United States v. Yunis, 681 F. Supp. 891 (D.D.C. 1988).
81 See David Isenberg, Terrorism Project, Posse Comitatus: Caution is Necessary, Center for Defense Information (Aug. 6, 2002), at http://www.cdi.org/terrorism/pcomitatus.cfm. The new head of the Northern Command (NORTHCOM),
50
Gen. Ralph E. Eberhardt has stated that he supports changes existing law to provide more domestic powers to the military to allow protection of the country from
terrorist attacks. See id.
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change and dissemination of information, thereby enhancing
the possibility that international terrorists will be apprehended
prior to further attacks on the United States.
A.
Contemporary Interpretationand Application to Military
Forces
The courts have interpreted the Act as not expressly
prohibiting the use of military personnel or equipment in certain support functions involving federal or state law enforcement agencies.8 2 Specifically, the National Guard and the
Coast Guard have been excluded from the prohibitions of the
Act. 8 3 Moreover, there is additional support for the notion that
Congress, by adopting the Act, did not intend to suggest that
the Act "prohibit[ed] the use of military material, supplies or
equipment in the aid of executing the laws. ''8 4 For example,
Congress itself established procedures that allowed any government department, including military departments, to provide
materials, work, and services to other bureaus and agencies
within the government.8 5 In order to be of practical application
in matters relating to law enforcement, the violations of the Act
and the Act itself must be analyzed based on the facts surrounding the violation.8 6 Some courts have supported Congress' decision stating that it is better to allow sharing of sources and
training when necessary than allowing civilian law enforcement
to maintain their own similar level of materials and limitations
87
of the services.
Much of the recent case law on the subject of the Act addresses issues related to the military's support of law enforce82 See infra note 134 and accompanying text.
83 See Hammond, supra note 13, at 963. See generally United States v.
Chaparro-Almeida, 679 F.2d 423 (5th Cir. 1982) (finding that the Act was not violated when the defendant was seized at sea by Coast Guard personnel because the
Act does not apply to the Coast Guard), cert. denied, 459 U.S. 1156; Gilbert v.
United States, 165 F.3d 470 (6th Cir. 1999) (finding that there was no violation of
the Act when the National Guard was acting under state services as a marijuana
strike force, rather than federal service).
84 Yunis, 681 F. Supp. at 895.
85 See 31 U.S.C. § 1535 (2003).
86 See United States v. McArthur, 419 F. Supp. 186, 194-95 (D.N.D. 1975),
affd sub nom. See generally United States v. Casper, 541 F.2d 1275 (8th Cir.
1976), cert. denied, 430 U.S. 970 (1977).
87 See McArthur, 419 F. Supp. at 194.
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ment activities in domestic rather than international or foreign
law enforcement matters.8 8 The courts have provided extensive
analysis concerning use of military personnel by civilian law enforcement and the Act. 8 9 In United States v. McArthur,90 three
88 See generally United States v. Gerena, 649 F. Supp. 1179 (D.Conn. 1986)
(which involved transportation from a military base in Puerto Rico to a courthouse
in the same territory); Hall v. State, 557 N.E.2d 3 (Ind.Ct. App. 1990) (where the
court stated the PCA was not violated when the OSI involved Air Force personnel
as undercover agents to assist the local law enforcement with drug investigations).
The use of the military in transporting individuals found to be violating laws enforced by the United States overseas may again become an importance discussion
since the United States has commenced war against Iraq and Al-Queda.
89 See generally Gerena, 649 F. Supp. 1179 (where transporting the defendant
in the custody of United States Marshals from a courthouse to a base in Puerto
Rico and later to an Army airfield in New York did not violate the Act as the military role was "passive"). See also generally United States v. Yunis, 681 F. Supp.
891 (D.D.C. 1988) (where the court stated military personnel acted passively in
defendant's arrest since they merely housed, transported and cared for defendant
while he was in FBI custody); State v. Marrero, 818 So.2d 211 (La. Ct. App. 4 Cir.
2002) (where the court found the Act was not violated in a circumstance in which
the Navy personnel provided Navy uniforms to civilian vice squad detectives who
were involved in an undercover drug bust in an area frequented by Navy personnel); State v. Hayes, 404 S.E.2d 12 (N.C. Ct. App. 1991) (where the court found the
military personnel's involvement in the investigation of a soldier dealing drugs did
not violate the Act since the civilian law enforcement was in charge of the investigation and the citizens were not subject to military power); Burkhart v. State, 727
P.2d 971 (Okla. Crim. App. 1986) (where the court found an Army Criminal Investigation Department investigator's role was "passive," in that he only purchased
the drugs from the defendant and was not involved in the arrest or asserting military authority over the defendant); Commonwealth v. Shadron, 370 A.2d 697 (Pa.
1977) (where the court found that the Act was violated when state police investigating armed forces members were assisted by military personnel who provided a
place to question the defendant and assisted in the search of his living quarters on
the base); Burns v. State, 473 S.W.2d 19 (Tex. Crim. App. 1971) (where court found
no violation of the Act when investigators of the Criminal Investigation Department accompanied civilian law enforcement who arrested military personnel for
selling drugs); State v. Gunter, 902 S.W.2d 172 (Tex. App. 1995) (where the court
stated the Act was not violated when the CID investigators who were undercover
and purchased cocaine from defendant relinquished the drugs to civilian law enforcement after the "buy" and were not involved in the defendant's arrest and did
not overtake the civilian law enforcement's superior role in the investigation);
Lovelace v. State, 411 S.E.2d 770 (Ga. Ct. App. 1991) (similar to Gunter in that
undercover personnel were in a "passive" role and the Act was not violated);
United States v. Mendoza-Cecelia, 963 F.2d 1467 (11th Cir. 1992), cert. denied sub
nom (where the court found no violation of the Act where the Navy provided a ship
to the Coast Guard personnel pursuing the defendant's vessel in search of a large
quantity of marijuana); Marin-Hernandez v. United States, 506 U.S. 964 (1992);
United States v. Kahn, 35 F.3d 426 (9th Cir. 1994) (where the court stated that the
Navy's assistance to the Coast Guard, including providing a vessel, communicating
aerial reconnaissance to the Coast Guard, and intercepting the defendant's vessel
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legal standards, which federal courts may apply in determining
whether or not certain military actions constitute a violation of
the Act, were enunciated. 9 1 The first standard asks whether
military personnel were actively and directly used by civilian
law enforcement in executing laws. 92 The second standard asks
whether the use of the Army or Air Force, or any division
thereof, has taken charge of the activities of the law enforcement official's activities. 9 3 The third standard addresses
whether Army or Air Force personnel have used the law enforcement officers so that the individuals were under military
power, which was regulatory, proscriptive, or compulsory in nature, either presently or prospectively. 94 When the courts are
faced with an accusation by a defendant that the military was
improperly involved in a domestic arrest, the application of
these standards would clarify whether a violation has occurred,
or in fact whether an exception applies to the situation in
question.
Congress responded to the judiciary's clear desire to allow
some commingling of law enforcement and the military by providing the Secretary of Defense discretion in assisting civilian
did not violate the Act); United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002)
(where the court held that the Act was not violated when military personnel and
the DEA were involved in the investigation of the defendant for selling LSD to a
marine, who later sold it to another military personnel on the base).
90 419 F. Supp. 186, 194-95 (D.N.D. 1975), af/d sub nom. See generally
United States v. Casper, 541 F.2d 1275 (8th Cir. 1976), cert. denied, 430 U.S. 970
(1977).
91 See McArthur, 419 F. Supp. at 193. In general the courts have found violations of the Act when military personnel are involved in arresting, searching personal property of an accused, seizing property of an accused, interviewing
witnesses, and directing off base investigations. See generally State v. Pattioay,
896 P.2d 911 (Haw. 1994) (where the court found a violation of the Act when Army
Criminal Investigation Department Personnel had initiated an off-case investigation of defendant based on a military dependent and civilian's information, even
though civilian law enforcement executed the search warrant and made the
arrest).
92 See McArthur, 419 F. Supp. at 194. See generally United States v. Hitchcock, 103 F. Supp. 2d 1226 (D.Haw. 1999) (where military involvement in investigation and arrest of drug defendant was indirect, and therefore did not violate the
Act), opinion withdrawn by 273 F.3d 903 (9th Cir. 2001); United States v. Bacon,
851 F.2d 1312 (11th Cir. 1988) (where the court affirmed the defendant's conviction based upon military investigator testimony because the investigator merely
aided civilian personnel in the ordinary course of his duties).
93 See McArthur, 419 F. Supp. at 194.
94 See id.
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law enforcement using military personnel and equipment. Specifically, general military law states, "the Secretary of Defense
may, in accordance with other applicable law, make available
any equipment ... base facility, or research facility of the Department of Defense to any Federal, State, or local civilian law
enforcement official for law enforcement purposes." 9 5 The law
allows the Secretary of Defense to assign personnel as long as
there is appropriate regulation and all laws are complied with.
A restriction does exist, which requires that military personnel
assignment is done in accordance with regulations and compliance with applicable law. 96 Over the years, Congress has limited the Act to allow for protection and safety of the American
citizens in the possibility of an attack in the United States. 97
For example, in 1997 Congress provided the Pentagon with authority to work with the Justice Department in the event of a
biological or chemical attack. 98 Most recently, the defense department has expanded the role of the United States Joint
Forces Command providing more authority in coordinating and
deploying military personnel in the fight against terrorism on
domestic soil and allowing use of equipment, research facilities,
and bases to civilian law enforcement officials for law enforcement reasons. 99 Over the years, there has been more use of military personnel in civilian situations without violating the PCA,
95 10 U.S.C.S. § 372 (Law. Co-op. 1996).
96 See id.
97 See Isenberg, supra note 81 (stating in response to a concern regarding the
safety of Americans and other Olympic contenders, about 5,000 federal troops as-
sisted civilian law enforcement at the 2002 Winter Olympics in Salt Lake City).
98 See id. (providing several laws, including one in which the President has
authority in an emergency to use the armed forces to perform work "essential for
the preservation of life and property").
99 See 10 U.S.C.S § 372 (Law. Co-op. 1996). See also 32. C.F.R. § 215.5 (2003),
which states:
[tihe employment of DoD military resources for assistance to civil authori-
ties in controlling civil disturbances will normally be predicated upon the
issuance of a Presidential Executive order or Presidential directive ...
Exceptions to this condition will be limited to:
(1) Cases of sudden and unexpected emergencies as described in
§ 215.4(c)(1)(i), which require that immediate military action be taken.
(2) Providing military resources to civil authorities as prescribed in
§ 215.9 of this part... (f) DoD civilian employees generally should not be
used to assist civil authorities in connection with civil disturbances, except as provided for in § 215.9(b)(3). Id.
See Isenberg, supra note 81.
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but the involvement is not at the level that would be necessary
or effective to ensure safety from further terrorist attacks on
American soil. 10 0
The courts have recognized that not every military involvement rises to the level of a constitutional violation. 10 1 There
have been numerous court decisions that have held that the
PCA is not violated in a situation in which the military is providing assistance to the civilian law enforcement, but the investigation is not characterized as military.1 0 2 Additionally, it has
been found that military involvement with civilian law enforcement provides the benefit of military technology, knowledge,
personnel, and equipment, which is a legitimate governmental
interest.1 0 3 Clearly, it is beneficial for the civilian law enforcement to be of the highest quality, training, and expertise to ensure adequate domestic safety and this can be achieved through
appropriate commingling of military resources and civilian law
enforcement. Courts have also favored the view that the Act
will not bar military support and assistance when the nature of
the action and conditions warrant it, or when individuals act as
private citizens.1 0 4 The courts have demonstrated a willingness
to interpret the Act according to its express terms, which does
100 See United States v. Yunis, 681 F. Supp. 891, 894 (D.D.C. 1988).
101 See United States v. Gerena, 649 F. Supp. 1179, 1182 (D. Conn. 1986)
(where the court reiterated the importance of maintaining a separate military and
civilian law enforcement, but indicated that minimal involvement of the military
with civilian activities is unlikely to cause the limitations on freedoms that the
writers of the Posse Comitatus Act feared).
102 See id. See also United States v. DelPrado-Montero, 740 F.2d 113, 116 (1st
Cir. 1984), cert. denied, 469 U.S. 1021 (1984). "The furnishing of materials, work,
and services, standing alone, is not a violation of the Posse Comitatus Act." Yunis,
681 F. Supp at 901. See also United States v. Hartley, 796 F.2d 112, 114 (5th Cir.
1986); Bissonette v. Haig, 776 F.2d 1384, 1390 (8th Cir. 1985); United States v.
McArthur, 419 F. Supp. 186, 194 (D.N.D. 1975), affd sub nom; United States v.
Hartley, 486 F. Supp. 1348, 1356-57 (M.D. Fla. 1980); United States v. Red
Feather, 392 F. Supp. 916, 923 (D.S.D. 1975); United States v. Jaramillo, 380 F.
Supp. 1375, 1379 (D. Neb. 1974). See generally United States v. Casper, 541 F.2d
1275 (8th Cir. 1976), cert. denied, 430 U.S. 970 (1977).
103 See Gerena, 649 F. Supp. at 1182.
104 See generally People v. Blend, 175 Cal. Rptr. 263 (Ct. App. 1981) (where the
court affirmed defendant's conviction when an off-duty sailor assisted police voluntarily in their investigation). See also People v. Talifero, 520 N.E.2d 1047 (Ill. App.
Ct. 1988) (when the court upheld defendant's conviction upon testimony derived
from an airman who participated in a controlled drug purchase in exactly the same
manner as any other private citizen would have participated in); People v. Burden,
303 N.W.2d 444 (Mich. 1981) (where the court reversed trial court's order to sup-
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not provide a blanket prohibition on military involvement in civilian law enforcement.
B.
United States v. Yunis: The Turning Point
United States v. Yunis105 represents perhaps the most sig-
nificant case to date concerning United States military intervention in a matter involving acts or participants engaged in
international terrorism. In Yunis, the FBI was successful in
luring Fawaz Yunis, the suspected hijacker of a Jordanian airplane in the Middle East, into international waters and arresting him. 0 6 The Navy assisted law enforcement which included
advising the FBI on the hijacker's location in international waters, transporting the defendant from the FBI's command post
aboard a yacht to the U.S.S. Saratoga, providing supplies and
medical attention to defendant while on board Navy vessels,
and operating the plane which carried Mr. Yunis and his FBI
escort from the U.S.S. Saratoga to the United States. 10 7
The Yunis court found that Navy personnel had not violated the Act by assisting the FBI in the apprehension and arrest of the defendant in international waters.' 08 In short, the
Navy's support was not the type of activity prohibited by the
Act, nor was it the kind of activity prohibited by the Department of Defense military and law enforcement cooperation
laws. 10 9 The court found it significant that the entire episode
had been directed by and had originated from within the FBI.ll °
In fact, the FBI was responsible for the mission at all times. 1
Thus, the court held that there was no violation of the Act when
the Navy's participation in the apprehension of this defendant
did not involve the arrest or interrogation of the defendant but
merely provided necessary services for the FBI custodians on
board its vessels. 112
press evidence and allowed testimony because airman informant's assistance was
unrelated to his status as a member of the military).
105 681 F. Supp. 891 (D.D.C. 1988).
106 See ANTOKOL & NUDELL, supra note 57, at 175.
107 See Yunis, 681 F. Supp. at 895.
108 See Yunis, 681 F.Supp. at 891.
109 See id.
110 See id.
111 See id.
112 See id.
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The court reasoned that the Navy's limited actions were not
enough to constitute "direct active involvement in the execution
of the laws, nor did the use of military personnel pervade the
activities of the civilian authorities."'113 Moreover, the court determined that by its very nature, the success of the operation
required the assistance of military personnel deployed in a particular location. 1" 4 These Naval forces, acting under the direction of the FBI through this mission, only gave law enforcement
agents requisite support in terms of "equipment, supplies, and
services." 1 5 In the end, the court held that the mere "furnishing of materials, work, and services, standing alone,"" 6 did not
violate the Act.
C.
InternationalCounterterrorismLegislation: The United
States and the InternationalCommunity Respond to
Terrorist Threat
1.
European Convention on the Suppression of Terrorism
The European Convention on the Suppression of Terrorism" 7 was adopted by the Council of Europe and is currently in
force among many leading European nations."18 The member
States of the Council adopted this multi-national agreement because of their growing concern over the increase in acts of terrorism. 1 9 The group wished to take effective measures to
ensure that the violators of such acts did not escape prosecution
and/or punishment. 20 The convention provides that contracting states would afford one another protection and assistance in the extradition of terrorists for specific offenses such as
those "involving an attack against the life, physical integrity or
liberty of internationally protected persons ... offen[s]e[s] involving kidnapping, [or] the taking of a hostage . . . [or] an ofId.
114 See Yunis, 681 F. Supp. at 895.
115 Id.
116 Id.
117 See European Convention on the Suppression of Terrorism, Jan. 27, 1977,
Europ. T.S. 90, reprinted in 15 I.L.M. 1272 (1976).
118 See Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution
and InternationalLaw, 83 Am.J. INT'L L. 880, 888 (1989).
119 See European Convention on the Suppression of Terrorism, Jan. 27, 1977,
Europ. T.S. 90, reprinted in 15 I.L.M. 1272, 1272 (1976).
120 See id.
113
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fence involving the use of a bomb . . ."121 among others. This
pact is one of the earliest attempts made by governments in order to proactively deal with the terrorist threat.
2.
The United Nations General Assembly Resolution on
Measures to Prevent InternationalTerrorism
The United Nations has also long since recognized the principle that acts of terrorism should not be tolerated, nor should
they be ignored by members of the world community. Its General Assembly Resolution on Measures to Prevent International
Terrorism 122 and companion resolutions, 23 "[u]nequivocally
condemn[], as criminal, all acts, methods and practices of terrorism wherever and by whomever committed, including those
which jeopardize friendly relations among States and their security; .. . [and] [d]eeply deplores the loss of innocent human
lives which results from such acts of terrorism." 124 These resolutions urge cooperation among nations "especially through the
exchange of relevant information concerning the prevention and
combating of terrorism... [and the] apprehension and prosecution or extradition of the perpetrators of such acts .... ,125
3.
United States CounterterrorismLegislation
Early federal legislation enacted in response to the international terrorist threat focused on specific terrorist attacks,
rather than broad based policy declarations aimed at terrorism
in general. The Anti-Terrorism Act of 1987126 was enacted to
make it unlawful for the Palestine Liberation Organization to
establish and maintain an office in the United States and other
related purposes. 127 This legislation was a direct response to a
series of terrorist attacks that began with the Black September
massacre of Olympic athletes in 1972, and culminated in the
121 European Convention on the Suppression of Terrorism, Jan. 27, 1977, art.
1, Europ. T.S. 90, reprinted in 151 I.L.M. 1272, 1272 (1976).
122 See G.A. Res. 145, U.N. GAOR, 34th Sess., Supp. No. 46, at 244-45, U.N.
Doc. A/Res/34/145 (1980).
123 See G.A. Res. 61, U.N. GAOR, 40th Sess., Supp. No. 53, at 301-02, U.N.
Doc. A/Res/40/61 (1986).
124 Id.
125 Id.
126 See 22 U.S.C. §§ 5201-5203 (1988).
127 See 133 CONG. REC. S6447 (1987).
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death of an American tourist aboard the Achille Lauro ocean
liner in 1987.128 The adoption of the Anti-Terrorism Act was an
attempt by Congress to alert government leaders about the serious threat Americans considered terrorism, and especially Middle Eastern terrorists. The legislative history indicates that the
senators believed that the main issue needing to be addressed
at that time was terrorism and the right of the United States to
defend itself against terrorism. 129 While the Palestine Liberation Organization continues to be a threat to the United States,
the focus of terrorism legislation has widened since 1987 to concentrate less on terrorist organizations directly and more on
terrorist actions in general and the manner of response by the
United States.
In 1981, Congress added a chapter on Military Support for
Civilian Law Enforcement Agencies (MSCLEA) 13° to Article Title 10 of the United States Code Service to address the circumstances under which the military could be asked to assist
domestic law enforcement without violating the PCA. The
MSCLEA is a comprehensive and extensive chapter that determines which military actions are authorized and prohibited
under federal law. The statute states that the Secretary of Defense can provide equipment and a base or research facility operated by the Department of Defense to federal, state, or local
civilian law enforcement agencies to be used for law enforcement purposes. 131 The courts have followed the requirements
of the statute and have not found violations of the Act when the
military is assisting law enforcement agencies as prescribed
under 10 U.S.C.S. § 372.132 The MSCLEA contains many proviSee
See
130 See
131 See
128
129
id.
id.
10 U.S.C.S. §§ 371-382 (Law. Co-op. 1996).
10 U.S.C.S. § 372 (Law. Co-op. 2002).
132 See generally United States v. Gerena, 649 F. Supp. 1179 (D.Conn. 1986)
(where the defendants were transported from a courthouse in Puerto Rico to Muniz
Air Base at the San Juan International Airport and then to Stewart Army Air
Field in New York and they later claimed a violation of the Posse Comitatus Act.
The court found that the Act was not violated as the civilian law enforcement
agency's use of the military equipment, facilities and personnel was "neither regulatory, prescriptive, nor regulatory" as the defendants were in the custody of marshals and not under the control of the military.). See also United States v. Garcia,
909 F. Supp 334 (D. Md. 1996), affd without op, 103 F.3d 121, reported in full (MD
1996) (where the court found based on 10 U.S.C.S. § 372 that the DEA and the
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sions whose sole purpose is to allow an exchange of information
and services between the military and civilian law enforcement
when such exchange is vital to the protection of citizens of the
United States or national interests.
The MSCLEA also contains other sections that were created with the goal of widening the legislation regarding military
involvement in domestic law enforcement, but not allowing the
public to conceive that the operation is directed by the military.
Department of Defense personnel are permitted to train federal,
state, and local civilian law enforcement on the maintenance
and operation of equipment and, specifically, equipment also
provided under the statute. 133 This level of involvement is important to ensure that local law enforcement is working with
the latest and most sophisticated technology in their new role of
homeland defense. Allowing military personnel to train civilian
law enforcement allows the United States to maintain highly
trained civilian law enforcement, while continuing to keep the
military focused on protecting the interests of the United States
outside of its borders.
The MSCLEA assists in bridging the gap between law enforcement agencies and the military when interaction is vital to
an operation's success. This is an issue that was raised post
September 11, 2001, when it was determined that civilian law
enforcement, such as the FBI, were unaware of certain information obtained by the Central Intelligence Agency. MSCLEA allows the Secretary of Defense to provide federal, state, and local
law enforcement agencies with information collected during
"the normal course of military training or operations" 134 with
the caveat that the information must be relevant to a violation
of any federal or state law within those officials' jurisdiction. 135
This section is the type of directive in the MSCLEA that draws
together the federal government through the Secretary of Defense and local and state law enforcement in a unified action.
Additionally, the MSCLEA seeks to encourage free exchange of
information by providing that "[tihe Secretary of Defense shall
state police did not violate the Posse Comitatus Act when they used a trained Air
Force canine to find heroin in a bus passenger's bag).
133 See 10 U.S.C.S. § 373 (Law. Co-op. 2002).
134 10 U.S.C.S. § 371(a) (Law. Co-op. 2002).
135 See 10 U.S.C.S. § 371 (Law. Co-op. 2002).
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ensure, to the extent consistent with national security, that intelligence information held by the Department of Defense and
relevant to . . . civilian law enforcement matters is provided
136
promptly to appropriate civilian law enforcement officials."
In light of recent events of domestic terrorist attacks, it is likely
that this section of the statute will be cited more frequently as
the reasoning for providing information between the military
and civilian law enforcement.
The MSCLEAA also requires that the military "provide
such law enforcement officials with expert advice relevant to
the purposes of this chapter [10 U.S.C.S. §§ 371-378]." 137 The
ability to call upon expert advice, equipment and personnel is
essential to the success of any joint military and law enforcement operation. Collaborative efforts such as those indicated in
MSCLEA along with recent legislation create a unified approach to fighting terrorism. Throughout the sections of the
MSCLEA and based on the change in the title in 1988 from
"Military Cooperation with Civilian Law Enforcement Officials"
to "Military Support for Civilian Law Enforcement Agencies" it
is clear that interagency support is a direct goal.
Until Congress passed the Patriot Act and the Homeland
Security Act of 2002, the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA)138 represented the United States'
most extensive legislative effort to respond to international terrorist threats. The AEDPA was enacted by both the Senate and
the House of Representatives and expressed its concern that
terrorism is a "serious and deadly problem" 13 9 that threatens
the United States, and that the country must make provisions
for response and prevention. 140 Congress made several findings, including those stated below, which were the impetus to
creating the section on international terrorism prohibitions:
(1) international terrorism is a serious and deadly problem that
threatens the vital interests of the United States;
136 10 U.S.C.S. § 371(c) (Law. Co-op. 2002).
137 10 U.S.C.S. § 373(2) (Law. Co-op. 1996).
138 See Antiterrorism and Effective Death Penalty Act of 1996. Pub. L. No. 104132, 110 Stat. 1214.
139 See id. § 301(a)(1).
140 See id.
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the Constitution confers upon Congress the power to punish
crimes against the law of nations and to carry out the treaty
obligations of the United States, and therefore Congress may
by law impose penalties relating to the provision of material
support to foreign organizations engaged in terrorist activity
141
The Congress also listed the following findings as the basis for
the section addressing the provision of material support to
terrorists:
(1)
international terrorism is among the most serious transnational threats faced by the United States and its allies, far
eclipsing the dangers posed by population growth or
pollution;
(2) the President should continue to make efforts to counter international terrorism a national security priority;
(3) because the United Nations has been an inadequate forum
for the discussion of cooperative, multilateral responses to
the threat of international terrorism, the President should
undertake immediate efforts to develop effective multilateral
responses to international terrorism as a complement to national counter terrorist efforts;
(4) the President should used all necessary means, including
covert action and military force, to disrupt, dismantle, and
destroy international infrastructure used by international
14 2
terrorists.
It is obvious that from these two groups of findings by the
AEDPA that Congress identified terrorism as a continuous
threat and provided Congress with extensive power to create
laws, which penalized the provision of material support to terrorist organizations. Congress has defined "terrorist activity"
as "any activity which is unlawful under the laws of the place
where it is committed (or which, if it had been committed in the
United States, would be unlawful under the laws of the United
States or any other state) ... .,,143 The definition also identifies
the following specific actions, when committed by either an individual or as a group would constitute terrorist activity:
141
Id. § 301(a)(1-2).
§ 324(1-4).
8 U.S.C.S. § 1182(a)(3)(B)(iii) (Law. Co-op. 2000).
142 Id.
143
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(I) The hijacking or sabotage of any conveyance (including an aircraft ...).
(II) The seizing or detaining, and threatening to kill, injure, or
continue to detain, another individual in order to compel a third
person (including a governmental organization) to do or abstain
from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
protected person...
(III) A violent attack upon an internationally
144
or upon the liberty of such a person.
Congress has defined terrorist activity not only by the area
where it is committed but also by delineating specific actions
that are considered "terrorist." This broad definition allows an
application of the law to actions committed both internationally
with Americans as the target and on American soil. Terrorists
and terrorism have a clear impact on both domestic and foreign
policy and as of recent have become the focus of every disaster,
tragedy, and policy decision made by the government. 145 As a
result, "foreign policy and economic interests are profoundly affected by terrorist acts overseas directed against foreign govern14 6
ments and their people."
The AEDPA includes in its scope the desire for the federal
government to assist civilian law enforcement in creating
counterterrorism programs and provides allotted funding for
the purchase of updated equipment necessary to counter terrorist tactics. For example, the legislation allows extensive latitude for counterterrorism measures, by providing that the
Attorney General has the responsibility to create a FBI
counterterrorism and counter-intelligence fund for the costs of
8 U.S.C.S. § 1182(a)(3)(B)(iii)(I-III) (Law. Co-op. 2000).
After the tragic explosion of the space shuttle Columbia on February 1,
2003, there were immediate concerns that terrorist activity was the cause because
the first Israeli astronaut was on the mission. This theory was discounted by officials who stated that a surface to air missile could not have reached the height the
shuttle was flying at the time of the explosion. See generally Bush: 'Columbia is
Lost', CBSNEWS.coM (Feb. 1, 2003), at http://www.cbsnews.com/stories/2003/02/
01/tech/main538865.shtml. However, the fact that terrorist activity was discussed
indicates how pervasive of an issue it has become since the attack on the World
Trade Center on September 11, 2001. See id. See also Officials: No Evidence of
Terrorism, CNN.coM (Feb. 2, 2003), at http://www.cnn.com/2003fUS/02/01/security.shuttle/index.html.
146 Antiterrorism and Effective Death Penalty Act of 1996, § 401, Pub. L. No.
104-132, § 301(a)(1), 110 Stat. 1214.
144
145
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investigation and fighting cases. 14 7 The Act further eliminates
all doubt as to appropriate federal court jurisdiction by providing that "[t] he courts of the United States have jurisdiction over
[an] offense ... if (A) a national of the United States was aboard
the aircraft; (B) an offender is a national of the United States;
or (C) an offender is afterwards found in the United States."'148
V.
THE
Posse Comitatus Act and the U.S. Military Friend or Foe?
There is little doubt that acts of international terrorism
pose a clear and present danger to national security. 149 The response of the United States to international terrorism, and how
the PCA impacts the military in that decision making process,
requires a three part analysis. First, the federal courts must
examine the facts and circumstances of a given incident in order
to determine whether or not the Act is applicable. Second,
judges must look to the MSCLEA in order to determine whether
military actions made in conjunction with law enforcement
agencies advance the purpose of the MSCLEA by promoting
greater inter-agency cooperation and providing a base for the
gathering of information and dissemination of intelligence. Finally, the courts should examine the AEDPA and decide
whether these military actions fall within the expressed purpose that the United States "use all necessary means, including
covert action and military force, to disrupt, dismantle, and destroy international infrastructure used by international terrorists ....
"150
For its part, Congress addressed the need for greater interagency support between the military and civilian law enforcement agencies by enacting both the MSCLEA and AEDPA. The
MSCLEA provides a statutory basis for interaction between the
military and federal, state, and local law enforcement officials,
while the AEDPA has widened the focus of terrorist legislation
from the original focus of the Palestine Liberation Organization
147 See id. § 811(a)(1)(B).
148 Id. § 721(a)(2)(A-C).
149 See ERICKSON supra note 58, at 63. See also 142 CONG. REC. H2268 (1995)
(section 401(k)(5) defines the term "national security" as the national defense and
foreign relations of the United States).
150 Antiterrorism and Effective Death Penalty Act of 1996, § 324, Pub. L. No.
104-132, 110 Stat. 1214 (emphasis added).
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to address specific acts of terrorism and their location while also
empowering the President to take swift and immediate action
in order to meet the terrorist threat against United States citizens or interests.
There is a growing awareness that traditional methods of
law enforcement involving only federal and state law enforcement agencies to combat terrorism, in and of itself, is not the
answer. Since September 11, 2001, the President and Congress
have created a Homeland Defense cabinet level post, and each
has called upon the military and law enforcement communities
to increase their abilities to share intelligence information.
Further, the possibility exists that vital transportation hubs
will now have federalized security forces to monitor public
travel. Finally, as a result of the recent World Trade Center
disaster, President Bush signed into law a $40 billion emergency spending bill to implement national recovery initiatives
and authorize the use of military forces in the fight against terrorists. The bill, passed by Congress, provides for an immediate
$10 billion to be used to respond to the World Trade Center attacks and to counter domestic and international terrorism in
the United States and abroad. The resolution also authorized
President Bush "to use all necessary and appropriate forces
against those responsible for the terrorist attacks" 15 1 of Septem-
ber 11, 2001.152
VI.
CONCLUSION
This article focused on the federal judiciary's interpretation
of the Act and its potential application in the deployment of military personnel, supplies, and equipment in matters involving
international terrorism. As a nation, our collective frustration
in coping with the contemporary realities of international terrorism have caused government and political leaders to examine the issue as to whether current federal and state law
enforcement measures are indeed adequate enough to protect
the health, safety, and welfare of our citizens in such circumstances. The PCA can be harmoniously integrated with the
151 Bush Signs Emergency Spending Bill, Resolution Authorizing Use of Force,
PEOPLE'S DAILY ONLINE (Sept. 19, 2001), at http://fpeng.peopledaily.com.cn/
200109/19/eng20010919_80576.html.
152 See id.
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spirit and intent of contemporary domestic and international
legislation enacted to respond to acts of terrorism. In conclusion, this article has advanced the proposition that the Posse
Comitatus Act does not bar the military from rendering assistance to law enforcement agencies engaged in the struggle to
combat international terrorism when such assistance does not
create a military directly involved with daily investigation and
adjudication of laws.
We are not seeking to undermine anyone's rights - neither the
rights of any Americans, nor the rights of anyone anywhere else
in the world; but we are trying to protect the right of the citizens
of this country to be free from the threat of terrorism .... So the
Constitution is not the issue .... Terrorism is the issue. 153
153 133 CONG. REC. S6447 (daily ed. May 14, 1987) (statement of Senator Robert Dole).
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